A.20.11.20
NMAC is applicable to all sources of fugitive dust in Bernalillo county, unless
otherwise exempt.

B.Exempt:20.11.20
NMAC does not apply to sources within Bernalillo county that are:

(1)located on Indian lands over which the
Albuquerque - Bernalillo county air
quality control board lacks jurisdiction;

(2)hard rock mining pits and operations
contained within the mining pit and permitted pursuant to the state of New
Mexico Mining Act; for the purposes of 20.11.20 NMAC, sand and gravel mining
operations are not exempt;

(3)emergency maintenance operations that are
intended to address an imminent threat to property or persons; however,
reasonably available control measures must be employed once the emergency has
been addressed, if appropriate, and a report of all activities shall be filed
with the department no later than 10 days after the incident has been concluded
and the department shall determine if additional action, including a permit
application submittal, is required before additional non-emergency activities
occur at the site; and

(4)stationary source operations subject to
20.11.41 NMAC, Authority to Construct,
or 20.11.42 NMAC, Operating Permits,
that produce fugitive dust as defined in 20.11.20 NMAC, but only if the source
of fugitive dust is addressed and controlled through permit conditions required
by a 20.11.41 NMAC or 20.11.42 NMAC permit; however construction at a
stationary source site, whether it involves new construction or a site
modification, is subject to 20.11.20 NMAC.

C.Conditionally Exempt:The
following five sources of fugitive dust emissions in Bernalillo county shall be
conditionally exempt from the requirements of 20.11.20 NMAC, unless the
department determines that the fugitive dust emitted from a conditionally
exempt source’s active operations or inactive disturbed surface area may
adversely and significantly affect human health within Bernalillo county:

(1)areas zoned for agriculture and used for
growing a crop;

(2)bicycle trails, hiking paths and
pedestrian paths, horse trails or similar paths used exclusively for purposes
other than travel by motor vehicles;

(4)lots smaller than three-quarters of an
acre used for any purpose; and

(5)unpaved roadways within properties used
for ranching, or properties owned or controlled by the United States department
of energy or department of defense, or United States department of agriculture
forest service lands or United States department of interior park service lands
if the public does not have motor vehicle access to the roadways.

[20.11.20.2 NMAC - Rp, 20.11.20.2 NMAC, 3/17/08]

20.11.20.3STATUTORY AUTHORITY:20.11.20
NMAC is adopted pursuant to the authority provided in the New Mexico Air
Quality Control Act, NMSA 1978 Sections 74-2-4, 74-2-5; the Joint Air Quality
Control Board Ordinance; Bernalillo county Ordinance No. 94-5, Sections 4 and
5; and the Joint Air Quality Control Board Ordinance, Revised Ordinances of
Albuquerque 1994 Sections 9-5-1-4 and 9-5-1-5.

[20.11.20.3 NMAC
- Rp, 20.11.20.3 NMAC, 3/17/08]

20.11.20.4DURATION:Permanent.

[20.11.20.4 NMAC - Rp, 20.11.20.4 NMAC,
3/17/08]

20.11.20.5EFFECTIVE
DATE:March 17, 2008, unless a later date is cited at the end of a section.

[20.11.20.5 NMAC -
Rp, 20.11.20.5 NMAC, 3/17/08]

20.11.20.6OBJECTIVE:To
ensure that every person shall use reasonably available control measures or
other effective measures on an ongoing basis to prevent or abate fugitive dust,
if the fugitive dust may with reasonable probability injure human health or
animal or plant life or as may unreasonably interfere with the public welfare,
visibility or the reasonable use of property, as required by 20.11.20 NMAC.

[20.11.20.6 NMAC - Rp, 20.11.20.6 NMAC, 3/17/08]

20.11.20.7DEFINITIONS:In
addition to the definitions in 20.11.20.7 NMAC, the definitions in 20.11.1 NMAC
apply unless there is a conflict between definitions, in which case the definition
in 20.11.20.7 NMAC shall govern.

A.“Active operations”means any anthropogenic activity that is
capable of generating, or generates fugitive dust, including but not limited
to: bulk material storage, handling or processing; earth moving; soil or surface
disturbance (e.g. discing, trenching, blading, scraping, clearing, grubbing,
topsoil removal); construction, renovation, or demolition activities; movement
of motorized vehicles on any paved or unpaved roadway or surface, right-of-way,
lot or parking area; or the tracking out or transport of bulk material onto any
paved or unpaved roadway.

B.“Anthropogenic”means human-caused changes in the natural or
built condition of the environment.

F.“Crop”means an agricultural plant harvested for
consumption, utilization or sale.

G.“Disturbed surface area” or “surface
disturbance”means the natural or
manmade area of the earth’s surface that, as a result of anthropogenic
activity, may become a source of transported material, track-out, or visible
fugitive dust.

H.“Division”means the city of Albuquerque air quality
division or its successor agency.

I.“Dust suppressant”means hygroscopic materials, or non-toxic
chemical stabilizers used to reduce or control fugitive dust emissions during
suspended operations and as a long term reasonably available control measure.

K.“Fugitive dust” or “dust”means organic or inorganic particulate
matter.Water vapor, steam, or
particulate matter emissions emanating from a duct or stack of process
equipment are not fugitive dust.

L.“Fugitive dust control construction
permit” or “permit”means
a fugitive dust control permit approved by the department and issued pursuant
to 20.11.20 NMAC that contains an approved fugitive dust control plan and
authorizes active operations to begin when the permit is signed by a division
manager, supervisor, scientist, field operations officer or health specialist.

M.“Fugitive dust control plan” or
“plan”means the part or portion
of the fugitive dust control construction permit or programmatic permit
application that details the reasonably available control measures and other
effective measures the permit applicant commits to use to reduce the quantity
of visible fugitive dust, transported material, or track-out leaving the
property or area under the control of the permittee and shall include
contingency fugitive dust control measures, whichshall be a requirement of every fugitive dust
control permit.

O.“High wind event” means a condition announced by the department consisting of wind speeds
of approximately 30 miles per hour or greater that, when accompanied by dry
soil conditions, that is likely to result in widespread reduced visibility due
to blowing fugitive dust and that may result in elevated monitored particulate
levels that may cause or contribute to an exceedance or violation of the
national ambient air quality standards.

P.“Inactive disturbed surface area”means any disturbed surface area on which
active operations have been suspended.

Q.“Large area disturbance”means a project or development, totaling more
than 25 acres upon which active operations have been conducted and includes
areas used for storage of bulk material, building or construction materials,
machinery or vehicles.

R.“Open storage pile”means the accumulation of bulk material that
is not fully enclosed, covered or chemically stabilized.

S.“Owner or operator"means a person who owns, leases, operates,
controls, or supervises a source that directly or indirectly produces or is
capable of producing fugitive dust.

T.“Parking lot” or “parking area”means a location where motor vehicles
routinely park whether or not the area is zoned for parking.

U.“Paved” or “paving” or “paved
roadway”means asphalt, recycled
asphalt, concrete or asphaltic concrete, routinely-maintained asphalt millings,
or combinations thereof, that cover a surface traveled or used by motor
vehicles.

V.“Permittee”means a person and all legal heirs,
successors, and assigns who has applied for and obtained a fugitive dust
control construction or programmatic permit issued by the department pursuant
to 20.11.20 NMAC.

W.“Person”means an individual, firm, partnership,
corporation, association, organization, company, joint stock association,
business trust, owner, or body politic, including a municipality, local, state
or federal government agency or political subdivision, and includes an
employee, officer, operator, contractor, supplier, installer, user,
leaseholder, trustee, receiver, assignee or other person acting in a similar
representative capacity with the authority to control transported material or
emissions of particulate matter generated at a disturbed surface area or
generated by activities associated with a disturbed surface area or inactive
disturbed surface area.

X.“Privately-owned”means real property that is not wholly or
partially owned, leased or otherwise controlled by a federal, state or local
government or governmental agency or political subdivision.

Y.“Programmatic permit”means a fugitive dust control permit valid
for up to five years issued to a permittee that performs routine maintenance or
routine ongoing active operations on real property, but does not include full
depth reconstruction of a roadway or substantial removal and replacement of a
manmade facility.A programmatic permit
shall include an approved fugitive dust control plan and shall be effective
when signed by a division manager, supervisor, scientist, field operations officer
or health specialist.

Z.“Property line”means the exterior boundary of real property,
as indicated by plats, plot maps or other indication of ownership limits.

AA.“Publicly-maintained”means under the jurisdiction of, or
maintained by a federal, state, or local government or governmental agency or
political subdivision.

BB.“Publicly-owned”means real property that is wholly or
partially owned, leased or otherwise controlled by a federal, state or local
government or governmental agency or political subdivision. Publicly-owned real
property includes easements and rights-of-ways, streets, roadways, sidewalks,
alleys and other public ways, parks, irrigation and drainage facilities, and
any other publicly controlled real property that can be the source of fugitive
dust.

CC.“Reasonably available control measure”
or “control measure”means
a device, system, process modification, apparatus, technique, work practice, or
combination thereof, that mitigates fugitive dust and includes the measures in
20.11.20.23 NMAC and any other regulatory control program that results in
equivalent protection of a disturbed surface or inactive disturbed surface
area, whether or not the purpose of the control measure is to mitigate dust or
to meet another requirement of 20.11.20 NMAC or any other statute or regulation.

DD.“Responsible person”means the person designated in a fugitive
dust control permit application or permit amendment who agrees to be and shall
be responsible for complying with 20.11.20 NMAC, and with the permit and plan
to the extent specified in the permit.

EE.“Short cut”means a non-dedicated roadway or route used
by motor vehicle drivers to save time by avoiding use of a dedicated and
authorized roadway.

FF.“Silt”means bulk material that passes through a
200-mesh screen using the ASTM-D 2487-93, “classification
of soils for engineering purposes (united soil classification system)”
method, or most current ASTM (American society for testing and materials)
method. Material that will pass through
a 200-mesh screen is 74 microns or less in size.

GG.“Source” or “source of fugitive
emissions”means the origin of
fugitive dust emissions.

HH.“Stabilized” or “stabilization”means ongoing practices that are
sufficient to prevent elevated monitored particulate levels that may cause or
contribute to an exceedance or violation of the national ambient air quality
standards by meeting the objective established in 20.11.20.6 NMAC and the
requirements of the general provisions established in 20.11.20.12 NMAC.

II.“Stockpile” means the depositing of bulk material by mechanical
means for the purpose of creating a pile formation on top of an existing
natural or man-made surface.

JJ.“Stop work order”means an order issued by the department
pursuant to the provisions of 20.11.20 NMAC that requires a person to cease
active operations.

KK.“Track-out” or “tracking”means bulk material deposited by a motor
vehicle or vehicles upon an unpaved or paved publicly or privately owned
roadway if the bulk material can become airborne due to mechanical or wind
action.

LL.“Transfer
of permit” means an agreement approved in writing by the department that
meets the conditions outlined in Paragraphs (1) through (6) of Subsection D of 20.11.20.14
NMAC.

MM.“Transported material”means particulate matter transported
by wind, water or other action that, once deposited, can become airborne due to
mechanical or wind action.

NN.“Unpaved roadway”means an unpaved route traveled by a
motorized vehicle.

OO.“Visible fugitive dust”means airborne particulate matter from a source,
resulting in particulate matter emissions that can be detected by the human eye
or a detection method approved by the department.Visible fugitive dust can be an indicator of
PM10.

PP.“Visible fugitive dust detection
method”means the method described
in 20.11.20.26 NMAC, which is one method used to determine compliance with
20.11.20 NMAC.

[20.11.20.7 NMAC - Rp, 20.11.20.7 NMAC, 3/17/08]

20.11.20.8VARIANCES:A
person may request a variance from 20.11.20 NMAC in accordance with the
procedures established in 20.11.7 NMAC.

[20.11.20.8 NMAC - Rp, 20.11.20.8 NMAC, 3/17/08]

20.11.20.9SAVINGS
CLAUSE:An amendment to Fugitive Dust
Control, 20.11.20 NMAC, which is filed with the state records center and
archives shall not affect actions pending for violation of a city or county
ordinance, or prior versions of 20 NMAC 11.20 and 20.11.20 NMAC, Airborne Particulate Matter, 20.11.20
NMAC Fugitive Dust Control, or a
permit.Prosecution for a violation of a
prior statute, ordinance, part or permit shall be governed and prosecuted under the statute,
ordinance, part or permit wording in effect at the time the violation was
committed.

[20.11.20.9 NMAC - Rp, 20.11.20.9 NMAC, 3/17/08]

20.11.20.10SEVERABILITY:If
any section, subsection, sentence, phrase, clause or wording of 20.11.20 NMAC
or the federal standards incorporated herein is for any reason held to be
unconstitutional or otherwise invalid by any court or the United States
environmental protection agency, the decision shall not affect the validity of
remaining portions of 20.11.20 NMAC.

A.Each person shall use reasonably available control measures or any
other effective control measure during active operations or on inactive
disturbed surface areas, as necessary to prevent the release of fugitive dust,
whether or not the person is required by 20.11.20 NMAC to obtain a fugitive
dust control permit.It shall be a
violation of 20.11.20 NMAC to allow fugitive dust, track out, or transported
material from any active operation, open storage pile, stockpile, paved or
unpaved roadway disturbed surface area, or inactive disturbed surface area to
cross or be carried beyond the property line, right-of-way, easement or any
other area under control of the person generating or allowing the fugitive dust
if the fugitive dust may:

(2)unreasonably interfere with the public
welfare, visibility or the reasonable use of property; or

(3)be
visible for a total of 15 minutes or more during any consecutive one hour
observation period using the visible fugitive dust detection method in
20.11.20.26 NMAC or an equivalent method approved in writing by the department.

B.Failure to comply with 20.11.20.12 NMAC, a fugitive dust control
permit, plan, term or condition shall be a violation of 20.11.20 NMAC.

(1)document, in the form of photographs in
electronic or hard copy formats or video recordings, the conditions of the
properties that are closest to the property subject to the permit and any other
properties the department believes are appropriate;

(2)maintain the documentation for one year
after completion of the permitted project;

(3)include in the permit a requirement that
the permittee remedy damage to real properties caused by a violation of the
permit; and

(4)make the documentation available as
evidence, upon request, to all parties involved in a property damage dispute
allegedly caused by fugitive dust.

D.A permittee whose violation of 20.11.20 NMAC results in fugitive dust
being deposited upon real property beyond the limits of the permitted area
shall take all actions necessary to remedy damage caused by a violation proven
with credible evidence.Such remedies
may include, but not be limited to, compensation, removal of the fugitive dust
and/or repair of any damage after obtaining permission from property owners or
operators before doing any remedial work on the damaged property.It shall be a separate violation of 20.11.20
NMAC to fail to remove the fugitive dust and repair the damage as specified in
a written schedule or any extension agreed to by the permittee and the owner of
the damaged property.If the parties
cannot agree to a schedule, the department may establish deadlines and failure
to comply with the deadlines shall be a separate violation of 20.11.20
NMAC.No violation will occur if the
failure to perform the corrective action is for reasons beyond the control of
the person performing the work including without limitation acts of God or
government preemption in connection with a national emergency or if the owner
of the allegedly damaged property refuses to grant reasonable permission and
access to conduct the remediation activities.

E.Stockpiles
shall be no higher than 15 feet above the existing natural or man-made grade
that abuts the stockpile, unless otherwise approved in advance and in writing
by the department.

F.Each person shall comply with all applicable provisions of the Clean
Air Act, the New Mexico Air Quality Control Act, joint air quality control
board ordinances, regulations of the board, and permits issued by the
department.

[20.11.20.12 NMAC - Rp, 20.11.20.12 NMAC, 3/17/08]

20.11.20.13FUGITIVE
DUST CONTROL PROGRAMMATIC PERMITS:

A.A fugitive dust control programmatic permit is
required for single or multiple facility locations to address real property
totaling three-quarters of an acre or more that is subject to routine
maintenance, routine surface disturbance activities, or routine ongoing active
operations.A programmatic permit
application and fugitive dust control plan shall be submitted on forms provided
by the department.Programmatic permits
are valid for up to five years.The
permittee shall pay the annual programmatic permit fee required by 20.11.2
NMAC, Fees, for each year covered by
the programmatic permit.Receipt of the
annual fee by the department shall result in an automatic annual renewal of the
programmatic permit.A new programmatic
permit application and fugitive dust control plan shall be submitted every five
years or sooner if the surface disturbance activities or fugitive dust
abatement strategies are modified.A
filing and review fee is not required for a programmatic permit.

B.A
person responsible for sloped (i.e. slopes having a steepness of three-to-one
or steeper) and bottom portions of interior and riverside drains and canals
used for irrigation purposes, and arroyos and public flood control facilities
subject to routine maintenance or repair, sedimentation and water erosion shall
obtain either a variance as provided by 20.11.7 NMAC or a programmatic permit
as provided by Subsection A of 20.11.20.13 NMAC if the person does not elect to
submit an application and obtain a fugitive dust control construction permit
pursuant to 20.11.20.14 NMAC.

C.No signs or photographic documentation shall be required for the
permits or activities subject to 20.11.20.13 NMAC.Appropriate permit application documentation
shall be determined by the department.

[20.11.20.13 NMAC - Rp, 20.11.20.13 NMAC, 3/17/08]

20.11.20.14FUGITIVE
DUST CONTROL CONSTRUCTION PERMITS:

A.A person who does not elect to obtain or who does not qualify for a
fugitive dust control programmatic permit pursuant to 20.11.20.13 NMAC and who
plans to conduct active operations that will disturb three-quarters of an acre
or more shall comply with either Subsection A or B of 20.11.20.18 NMAC and
obtain a fugitive dust control construction permit.No active operations shall commence until a
department manager, supervisor, scientist, field operations officer or health
specialist signs the fugitive dust control construction permit (permit) and a
copy of the signed permit is available at the site of active operations.A permit shall consist of a complete permit
application a fugitive dust control plan, any appended documents, any
conditions attached to the permit by the department, and a signature and
effective date affixed by a department manager, supervisor, scientist, field
operations officer or health specialist.

B.The permittee shall comply with the terms of the permit unless the
department approves a transfer of the permit or issues a new permit for the
active or inactive disturbed surface area of operation to a new permittee.If three-quarters of an acre or more of the
real property that is subject to the permit is transferred or sold the new
owner is responsible for complying with either 20.11.20.13 NMAC or 20.11.20.14
NMAC unless exempt.Upon receipt of an
amended permit signed by a department manager, supervisor, scientist, field
operations officer or health specialist, the permittee who transferred or sold
the real property no longer will be responsible for control of fugitive dust
originating from the real property that has been transferred or sold.Permit amendment fees shall be paid as
required by 20.11.20.14 NMAC.

C.If a person other than the permittee will be responsible for complying
with the permit and 20.11.20 NMAC, then the permittee shall designate the
responsible person or persons in the permit application who shall be
responsible for active operations and inactive disturbed surface areas to the
extent specified in the application.Before a responsible person shall be liable for a violation of the
permit or 20.11.20 NMAC, the responsible person shall agree in writing to
accept responsibility for compliance with the permit conditions.The responsible person shall be the first
person the department attempts to contact regarding a violation of the permit
or 20.11.20 NMAC. In addition, the
department may approve, in writing, a permit amendment that adds or changes the
responsible person who has agreed in writing to be responsible for complying
with the permit and plan, to the extent specified in the permit.If the responsible person and permittee fail
to comply with the provisions of 20.11.20 NMAC, the owner or operator, if
different from the responsible person or permittee, shall be responsible for
compliance with the permit.

D.An
approved permit shall be valid for one year from the date of issuance by the
department or until the project expiration date provided in the permit
application, whichever is longer, but no more than five years from the date of
issuance.If the project plan,
expiration date, total disturbed surface area, completion date or the proposed
control measures change in any manner, an amended or new permit is
required.At least 10 business days
before the expiration date, a fugitive dust control permit shall be renewed by
the then-current permittee, or the permit shall expire as of the expiration
date.Permit amendment or renewal fees
shall be paid as required by Subsection H of 20.11.20.14 NMAC.Permits may be transferred to legal heirs,
successors, and assigns, who shall become the new permittee.Permit transfers may qualify as an
administrative amendment if:

(1)the department has received, on a form
provided by the department, a written transfer agreement signed by the current
and new permittee, and, if different than the new permittee, by the owner of
the real property subject to the permit;

(2)a specific date of the transfer of the
permit and plan responsibility, coverage, and liability is established in the
transfer agreement;

(3)the department has determined that no
change to the permit and plan other than the administrative change is
necessary;

(4)the new permittee and owner have submitted
the application information required by 20.11.20.15 NMAC if changes have been
made to the permit and plan as deemed necessary by the department;

(5)no grounds exist for permit termination,
as otherwise provided by 20.11.20 NMAC; and

(6)the transfer agreement has been approved
in writing by the department.

E.After a permit is issued and before the start of active operations, the
permittee shall install and maintain a project sign provided by the department
or a project sign that meets the requirement of 20.11.20.14 NMAC.The department will establish uniform design
guidelines for the sign to ensure that the sign is reasonably legible to the
public.If the required information is provided
in an existing project sign that has been established for another purpose, an
additional sign shall not be required to comply with 20.11.20 NMAC.At a minimum, the sign shall contain the
following:

(1)project name;

(2)permittee name;

(3)phone number of designated responsible
person or owner;

(4)subcontractor name (optional);

(5)subcontractor phone number (optional);

(6)air quality division phone number;

(7) fugitive dust control permit number; and

(8)total acres of area to be disturbed.

F.The permittee or responsible person shall make the
permit available to all employees, agents, sub-contractors, and other persons
performing work in the area of active operations or inactive disturbed surface
areas to assist in maintaining compliance with 20.11.20 NMAC.The permittee or responsible person shall
explain the requirements of the permit to appropriate employees, contractors
and agents working at the site.Upon
request, the permittee shall provide information regarding how to obtain a copy
of the permit from the department.

G.It is the responsibility of the permittee or responsible person to
ensure that the permit or amended permit contains current contact information
and that a copy is maintained at the work site and is provided to the
department upon request.Failure to
maintain and provide up-to-date contact information shall be a violation of
20.11.20 NMAC.

H.The department may amend or renew the permit if requested to do so by
the permittee.No fee shall be charged
for amending or renewing a permit, unless there will be an increase in the
number of acres subject to surface disturbance.Both the department and the permittee must sign an amended permit before
it will be effective.The department is
not required to sign a renewed permit unless the renewed permit increases the
number of acres subject to surface disturbance.An amended or renewed permit that involves an increase in the number of
acres subject to surface disturbance shall require payment of fees as required
by 20.11.2 NMAC.

[20.11.20.14 NMAC - Rp, 20.11.20.14 NMAC, 3/17/08]

20.11.20.15FUGITIVE
DUST CONTROL CONSTRUCTION PERMITS; MINIMUM PERMIT APPLICATION REQUIREMENTS:Proposed
fugitive dust control construction permit applications shall be submitted on
forms provided by the department.Fugitive dust control plans may be submitted in any format including a
copy of a program that complies with any other statute or regulation so long as
the plan provides reasonably available control measures whose purpose is to
mitigate fugitive dust and the plan meets the objectives of 20.11.20 NMAC.If extraneous information is supplied that
does not apply to mitigation of fugitive dust, then the dust control measures
shall be clearly identified in the plan or the permit application shall be
deemed incomplete and shall be rejected.An incomplete permit application shall be processed as described in
Subsection C of 20.11.20.18 NMAC. Proposed fugitive dust control permit
applications shall include the following:

A.name, address, telephone number and fax number of permittee;

B.owner’s name, address, telephone number and fax number if different
from permittee;

C.if
different than the permittee, the name, address, telephone number and fax
number of the responsible person who is agreeing to, and shall be responsible
for activities on the permitted site; the department shall first attempt to
contact the responsible person regarding a violation of the permit;

D.anticipated project start date which shall be no fewer than 10 business
days from the department’s receipt of the permit application for areas
containing greater than three quarters of an acre but no greater than 25 acres,
and no fewer than 20 business days from the department’s receipt of the permit
application for areas containing more than 25 acres;

I.a check or money order for the fees due, calculated using the tables
provided on the permit application form, payable to the ‘city of Albuquerque
permits program’ (fund 242);

J.a description of the sequencing of the active operations, if phasing is
used to reduce the total disturbed area at any time;

K.estimated total volume of bulk material being handled in cubic yards,
including any bulk material being imported, exported or relocated;

L.location from which bulk material is being imported to the site and a
statement regarding whether the site where the imported material originates
will have a separate fugitive dust control permit, or provide written
information to the department as soon as known;

M.location to which bulk material from the site is being exported and a
statement regarding whether the site to which the material is to be exported
will have a separate fugitive dust control permit, or provide written
information to the department as soon as known;

N.whether an approved drainage plan exists pursuant to city of
Albuquerque or Bernalillo county ordinances and, upon request by the
department, provide a copy of the drainage plan;

O.site map (e.g. zone
atlas page, aerial photograph);

P.type of work being performed and appropriate
reasonably available control measures, as described in 20.11.20.23 NMAC, or
other effective control measures proposed to be used in the fugitive dust
control plan;

Q.a statement that effective contingency fugitive dust control measures
shall be taken by the permittee if the control measures required by Subsection
P of 20.11.20.15 NMAC are not effective in maintaining compliance with 20.11.20
NMAC;

R.a commitment to comply with provisions of Subsection B of 20.11.20.16
NMAC if the permittee chooses to preserve the ability to qualify for a high
wind affirmative defense;

S.high wind contingency measures that will be implemented when high winds
occur;

T.a description of the actions the permittee will take to mitigate damage
caused by fugitive dust if generated by active operations or an inactive
disturbed surface area on the permitted site;

U.other proposed conditions;

V.signature of the permittee, and, if a different person, signature of
the owner, operator and/or any responsible person certifying that the
information in the fugitive dust control permit application is true, accurate
and complete, and certifying that all actions necessary to comply with 20.11.20
NMAC will be taken, including suspending active operations if necessary to
comply with the provisions of 20.11.20 NMAC; and

W.a
statement regarding whether bulk material will be stockpiled at the project
site, the dimension of each stockpile, and the reasonably available control
measures or other effective control measures that will be used at the stockpile
area to comply with 20.11.20 NMAC.

A.General requirements:during
a high wind event, all persons responsible for fugitive dust control activities
on publicly or privately-owned real property where active operations are
occurring or inactive disturbed surface areas exist shall use reasonably
available control measures or other effective measures to prevent fugitive dust
from leaving theproperty.All such persons shall implement the control
measure required by Paragraph (5) of Subsection C, of 20.11.20.16 NMAC.

B.High wind affirmative defense:if
the department initiates an administrative enforcement action against either a
permittee or a responsible person, or both (respondent) alleging a violation of
a permit or 20.11.20 NMAC during a high wind event, the respondent may assert
an affirmative defense in the enforcement action if the respondent establishes
by credible evidence that respondent complied with the requirements established
in Subsection C of 20.11.20.16 NMAC.In order
to successfully assert the affirmative defense, during the entire duration of a
permit the respondent shall utilize the applicable controls described in
Subsection C of 20.11.20.16 NMAC, regardless of whether or not a high wind
event exists, with the exception of Paragraph (5) of Subsection C of
20.11.20.16 NMAC, which shall be required during a high wind event.The affirmative defense shall not be
available if respondent has failed to diligently perform the control measures
specified in Paragraphs (1) through (5) of Subsection C of 20.11.20.16
NMAC.The availability of the
affirmative defense shall not change the respondent’s potential liability for
any damage caused by fugitive dust leaving the permitted property, and the
affirmative defense shall not change the permittee’s obligation to remove
fugitive dust originating from the permitted source, or otherwise remedy the
damage, as required by Subsection D of 20.11.20.12 NMAC.The board, its members, and employees and
officials of the city of Albuquerque and the county of Bernalillo shall not
incur individual liability for damage to persons or property caused by fugitive
dust leaving the permitted property.

C.Mandatory control measures:to assert a high wind event affirmative defense as described in
Subsection B of 20.11.20.16 NMAC, a permittee shall utilize the applicable
control measures in Paragraphs (1) and (2) of Subsection C of 20.11.20.16 NMAC
on an ongoing basis.Without prior
notice to the department, the permittee may use the measure in Paragraph (3) of
Subsection C of 20.11.20.16 NMAC in place of the measure in Paragraph (1) of
Subsection C of 20.11.20.16 NMAC.After
receiving written permission from the department, the permittee may substitute
the measures in Paragraph (4) for the measures in Paragraphs (1) and (2), or (2)
and (3) of Subsection C of 20.11.20.16 NMAC.All permittees, whether or not they intend to assert a high wind
affirmative defense, shall implement the measure in Paragraph (5) of Subsection
C of 20.11.20.16 NMAC during a high wind event.

(1)Use of wet suppression sufficient to attain and maintain eighty percent
of the optimal moisture content of the soil as determined by a proctor analysis
performed by a certified public or private materials testing laboratory.For proctor analyses, either the standard
proctor (ASTM D-698) or the modified proctor (ASTM D-1557) may be used.Daily, representative testing of the soil
moisture content shall be taken on exposed new surfaces after the top one-half to
one inch of the soil is removed at the sampling area.Three times each day, at intervals that are
equally spaced throughout the work day, the respondent shall test and record
the soil moisture content at three separate representative locations on the permitted
property, which will result in a minimum of nine tests each day.To demonstrate compliance, any set of three
tests shall average 80 percent of the optimal moisture content of the soil and
no individual test shall be less than 70 percent of the optimal moisture
content of the soil.Failure to meet the
soil moisture content standards as required by Subsection C of 20.11.20.16 NMAC
for any set of three tests shall require that the respondent immediately apply
necessary control measures at the portion or portions of the representative area
where the soil moisture content tested as insufficient, and re-test the same
representative locations, as necessary, until the soil moisture content
complies with the standards as required by Subsection C of 20.11.20.16 NMAC.The respondent or the department shall use a
reasonably accurate commercially-available instrument to determine soil
moisture content.Where possible,
methods for determining soil moisture content shall be consistent with ASTM standards
(e.g. ASTM D-1556-90 - sand cone test, ASTM D2922-91 - nuclear density).All tests for soil moisture content shall be
documented and retained for the duration of the permit, and shall be made
available to the department upon request.

(2)Use of properly-maintained fabric fencing
material around the perimeter of the disturbed surface area with openings no
wider than necessary to allow vehicles to enter or exit the area.The fencing material shall be anchored
approximately six inches below the surface on the bottom edge, and when
installed shall be approximately 24 or more inches above the existing natural
or man-made surface.The fence shall be
installed in a durable manner.For
example, one durable installation method involves use of steel T-posts spaced
approximately eight to 10 feet apart with steel mesh wire used as a
reinforcement backing to the fabric.Use
of fabric fencing standards associated with the national pollutant discharge
system may be approved by the department if they are consistent with the
requirements of Paragraph (2) of Subsection C of 20.11.20.16 NMAC.The department may also approve alternative
fencing material if it provides equal or better control of fugitive dust.Alternatives may include solid walls or
sturdy fences that effectively control fugitive dust.To maintain effectiveness of the fence,
fugitive dust that accumulates on either side of the fencing shall be removed
promptly.

(3)Use of chemical dust suppressants applied
in amounts, frequency and rates recommended by the manufacturer, and maintained
as recommended by the manufacturer sufficient to substantially reduce fugitive
dust leaving the fugitive dust source while active operations are idle, usually
used when active operations are suspended for more than 48 hours.

(4)A department-approved alternative dust
control measure or measures that provide fugitive dust control that is equal to
or better than measures in Paragraphs (1) and (2), or (2) and (3) of Subsection
C of 20.11.20.16 NMAC.Before a
permittee may substitute an alternative control measure, the department must
approve the control measure in writing as a permit amendment.

(5)Stopping active operations that are
capable of producing fugitive dust.

D.Active operations during an
announced high wind event:The department shall use national weather
service (NWS) data, recorded at either the Albuquerque international airport
(Sunport) or Double Eagle II airport, in order to determine forecasted or
actual wind speeds when announcing that a high wind event may or will
occur.Wind velocity measurements taken
in the field by the department, the responsible person, or permittee shall be
taken at a representative active operation area on the permitted property or by
the department within 200 feet of the permitted property being evaluated to
determine whether active operations can be continued, resumed or
initiated.Wind measurement results
shall be documented and retained throughout the duration of the permit, and
shall be made available to the department and the permittee and/or person
responsible for controlling fugitive dust at the permitted property.A continuous one-hour wind velocity
measurement with an average wind speed of less than 20 miles per hour, along
with on-site stable soil conditions and effective dust control measures, as
stated in the fugitive dust control plan, shall be sufficient to allow active
operations during an announced high wind event.However, fluctuations in average wind speed and high wind gusts may
re-occur and can cause ineffective dust control during active operations, which
may result in a violation of 20.11.20 NMAC.Therefore, the responsible person or permittee shall continuously assess
wind conditions and on-site soil conditions during an announced high wind event
and shall maintain the reasonably available control measures which include
stopping active operations as required by Paragraph (5) of Subsection C of
20.11.20.16 NMAC.

E.Limitations on use of affirmative
defense:A respondent may not assert the affirmative defense described in
20.11.20.16 NMAC:

(1)against an action for injunctive relief;
or

(2)to prohibit the EPA or a citizen’s group
from taking an enforcement action.

[20.11.20.16 NMAC - Rp, 20.11.20.16 NMAC, 3/17/08]

20.11.20.17FILING,
REVIEW AND INSPECTION FEES:Thefees required by 20.11.20 NMAC are located in
20.11.2 NMAC, Fees.The filing and
review fee portion of the total permit application fee due when a fugitive dust
control construction application is filed is non-refundable.

A.A person who is required to submit a fugitive dust control construction
permit (permit) application and plan for active operations that will disturb at
least three-quarters of an acre, but no more than 25 acres, shall submit the
permit application and plan with the applicable fees to the department no fewer
than 10 business days prior to the start of active operations.Within 10 business days of the department
receiving the permit application, plan and fees, the department will approve
the permit, approve the permit with conditions or deny the permit.

B.A person who is required to submit a permit application and plan for
active operations that will disturb more than 25 acres shall submit the permit
application and plan with the applicable fees to the department no fewer than
20 business days prior to the start of active operations. Within 20 business days of the department
receiving the permit application, plan and fees, the department will approve
the permit, approve the permit with conditions or deny the permit.

C.The fugitive dust control plan may be in any form including a copy of a
program that complies with any other statute or regulation so long as the plan
provides reasonably available control measures whose purpose is to mitigate
fugitive dust and the plan meets the objectives of 20.11.20 NMAC.If the plan does not specifically enumerate
the control measures proposed to mitigate fugitive dust, the permit application
shall be deemed incomplete and shall be rejected.If an incomplete application is rejected, a
new or amended application may be filed and the time limits in Subsections A or
B of 20.11.20.18 NMAC shall apply as if the initial application had not been
filed.

D.If all requirements of 20.11.20
NMAC have been met by the applicant, the department shall issue a permit to the
permittee, which shall authorize commencement of active operations.If the department has not approved, denied,
or notified the applicant regarding the permit application within 30 business
days of the department’s receipt of the permit application, plan and fees, then
the permit shall be automatically approved and operations may commence if the
permittee uses the reasonably available control measures and fugitive dust
control plan as submitted in the application.However, if the measures and plan are not effective, the department may
initiate an enforcement action for violation of 20.11.20 NMAC.

A.No unpaved roadway greater than one-quarter mile in length and no
unpaved parking areas may be constructed or allowed to be constructed or
reconstructed on any publicly-owned land or privately-owned real property,
unless the owner has applied for and received a permit pursuant to 20.11.20.13
NMAC or 20.11.20.14 NMAC.Owners in
possession of a valid fugitive dust control permit that wish to construct
additional unpaved roadways shall apply for an amendment to their permit which
shall include payment of any fees required by 20.11.2 NMAC.In addition, no unpaved short-cut of any
length on private or public property may be constructed or be allowed to remain
usable when it is evident the short cut is being used by motor vehicle drivers
to save time by avoiding use of a dedicated and authorized roadway.A variance from Subsection A of 20.11.20.19
NMAC may be granted by the board in a manner consistent with the variance
procedures provided in 20.11.7 NMAC.

B.Owners or operators shall use reasonably available control measures on
all unpaved roadways and unpaved parking areas and shall comply with the
general provisions established in 20.11.20.12 NMAC.

C.Public unpaved roadway; complaints.If
the department receives a fugitive dust complaint regarding an unpaved public
roadway, the department will forward the complaint by hand delivery,
inter-office mail delivery or certified mail, return receipt requested, to the
governmental agency responsible for maintenance of the roadway.Within 45 calendar days from the date the
complaint was received by the responsible agency, the responsible agency shall
make a reasonable effort to address the complaint, and the governmental agency
shall provide the department with a written report of the actions taken to
resolve the complaint.Failure of the
responsible agency to submit a timely report shall be a violation of 20.11.20
NMAC.

[20.11.20.19 NMAC - Rp, 20.11.20.19 NMAC, 3/17/08]

20.11.20.20ABRASIVE
PRESSURE BLASTING OPERATIONS:A person who performs abrasive pressure
blasting operations shall employ reasonably available control measures or other
effective control measures at all times to comply with 20.11.20.12 NMAC and
shall substantially reduce fugitive dust emissions that are leaving the
property where the abrasive pressure blasting operations are taking place.A person who is conducting abrasive pressure
blasting operations is not required to obtain a fugitive dust control permit
from the department.However, stationary
source permitting regulations, such as 20.11.41 NMAC and 20.11.42 NMAC, may
apply to pressure blasting operations.

[20.11.20.20 NMAC - Rp, 20.11.20.20 NMAC, 3/17/08]

20.11.20.21CONTROL
OF GREENWASTE MATERIAL:To prevent greenwaste from becoming ground up
by the abrasive action of tires, which may then be entrained into the atmosphere
as particulate matter, all persons causing, directing or authorizing greenwaste
to be deposited on publicly-owned real property shall promptly remove or cause
the removal of the greenwaste.

[20.11.20.21 NMAC - Rp, 20.11.20.21 NMAC, 3/17/08]

20.11.20.22DEMOLITION
AND RENOVATION ACTIVITIES;FUGITIVE DUST
CONTROL CONSTRUCTION PERMIT AND ASBESTOS NOTIFICATION REQUIREMENTS:No
person shall demolish any building containing over 75,000 cubic feet of space
without first delivering to the department a fugitive dust control construction
permit application and fugitive dust control plan with the fee required by
20.11.2 NMAC. No active operations shall
commence until a department manager, supervisor, scientist, field operations
officer or health specialist signs a fugitive dust control construction permit
and a copy of the signed permit is available at the site of active operations. Failure to obtain a fugitive dust control
construction permit prior to commencement of demolition activities as described
in 20.11.20.22 NMAC shall be a violation of 20.11.20 NMAC.All demolition and renovation activities
shall employ reasonably available control measures at all times, and, when
removing asbestos containing materials (ACM), shall also comply with the
federal standards incorporated in 20.11.64 NMAC, Emission Standards for Hazardous Air Pollutants for Stationary Sources.A person who demolishes or renovates any
commercial building, residential building containing five or more dwellings, or
a residential structure that will be demolished in order to build a
nonresidential structure or building shall file an asbestos notification with
the department no fewer than 10 calendar days before the start of such
activity.Written asbestos notification
certifying to the presence of ACM is required even if regulated ACM is not or
may not be present in such buildings or structures.Failure to provide proper asbestos notification
shall be a violation of the requirements of 20.11.64 NMAC.Knowingly violating provisions of 20.11.64 NMAC
is a fourth-degree felony pursuant to the New Mexico Air Quality Control Act,
74-2-14.C.3 NMSA 1978.

[20.11.20.22 NMAC - Rp, 20.11.20.22 NMAC, 3/17/08]

20.11.20.23REASONABLY AVAILABLE CONTROL MEASURES
FOR FUGITIVE DUST:The permittee may include in the permit application one or more of the
reasonably available control measures included in 20.11.20.23 NMAC or one or more alternative fugitive dust control
measures, including measures taken to comply with any other statute or
regulation if the measures will effectively control fugitive dust during active
operations or on inactive disturbed surface areas. At minimum, all projects requiring a fugitive
dust control construction permit shall utilize paved or gravel entry/exit
aprons, steel grates or other devices capable of removing mud and bulk material
from vehicle traffic tires, and erect a properly-maintained fabric fencing
material around the perimeter of the disturbed surface area with openings no
wider than necessary to allow vehicles to enter or exit the area.The fencing material shall be anchored
approximately six inches below the surface on the bottom edge, and when
installed shall be approximately 30 or more inches above the existing natural
or man-made surface.To maintain
effectiveness of the entry/exit apron, steel grate or other similar device
(device), accumulated materials shall be removed promptly. To maintain
effectiveness of the fence, fugitive dust that accumulates on either side of
the fencing shall be removed promptly.

(1)cleaning up spillage and track out as
necessary to prevent pulverized particulates from being entrained into the
atmosphere;

(2)using on-site wheel washes; or

(3) performing regularly scheduled vacuum
street cleaning or wet sweeping with a sweeper certified by the manufacturer to
be efficient at removing particulate matter having an aerodynamic diameter of
less than 10 microns (i.e. PM10).

C.Trucks hauling bulk materials on
public and private roadways:

(1)using properly secured tarps or cargo
covering that covers the entire surface area of the load;

(3)using wet suppression to increase moisture
content of the bulk materials being hauled;

(4)using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer; or

(5)maintaining a minimum of six inches of
freeboard from the rim of the truck bed; freeboard means the vertical distance
from the highest portion of the load abutting the bed and the lowest part of
the top rim of the truck bed.

D.Active operations in construction
areas and other surface disturbances:

(1)Short term control measures may include:

(a)wet suppression;

(b)dust suppressants applied in amounts,
frequency and rates recommended by the manufacturer and maintained as
recommended by the manufacturer;

(c)watering
the site at the end of each workday sufficiently to stabilize the work area;

(d)applying dust suppressants in amounts,
frequency and rates recommended by the manufacturer on the worksite at the end
of each workweek if no active operations are going to take place over the
weekend or if active operations stop for more than two consecutive days;

(e)starting construction at the location that
is upwind from the prevailing wind direction and stabilizing disturbed areas
before disturbing additional areas;

(f)stopping active operations during high
wind; or

(g)clean up and removal of track-out material.

(2)Long term control measures may include:

(a)site stabilization using dust suppressants
applied in amounts, frequency and rates recommended by the manufacturer and
maintained as recommended by the manufacturer;

(b)reseeding using native grasses as
specified in 20.11.20.24 NMAC;

(c)xeriscaping;

(d)installing parallel rows of fabric fencing
or other windbreaks set perpendicular to the prevailing wind direction either
onsite or on a nearby property with the permission of the nearby property
owner;

(e)surfacing with gravel or other mulch
material with a size and density sufficient to prevent surface material from
becoming airborne;

(f)mulching and crimping of straw or hay as
specified in Subsection D of 20.11.20.24 NMAC;

(g)installing permanent perimeter and
interior walls;

(h)using conventional landscaping techniques;
or

(i)clean up and removal of track-out
material.

E.Bulk material handling:

(1)using spray bars;

(2)applying wetting agents (surfactants) to
bulk material;

(3)using wet suppression through manual or
mechanical application;

(4)adding dust suppressants to bulk materials in amounts, frequency and
rates recommended by the manufacturer and maintained as recommended by the
manufacturer;

(4)using dust suppressants applied in amounts, frequency and rates
recommended by the manufacturer, and maintained as recommended by the
manufacturer;

(5)installing wind breaks;

(6)installing enclosures;

(7)installing on-site anemometers to measure
wind speed; the anemometer should trigger a suitable warning mechanism such as
a strobe light or an audible alarm (that will not violate any applicable noise
ordinance) to notify on-site personnel of high wind conditions;

(8)increasing wet suppression applications
before and during high wind conditions; or

(9)stopping active operations during high
wind conditions.

G.Demolition and renovation activities
when asbestos-containing materials are not present:

(1)using constant wet suppression on the debris piles during demolition;

(2)using water or dust suppressants on the debris pile, applied in amounts,
frequency and rates recommended by the manufacturer;

(3)using dust suppressants applied in amounts, frequency and rates
recommended by the manufacturer, and maintained as recommended by the
manufacturer;

(4)using enclosures; or

(5)using curtains or shrouds.

I.Pressure blasting operations:

(1)using non-friable abrasive material;

(2)using curtains, enclosures or shrouds;

(3)using negative pressure dust collectors;

(4)using constant wet suppression;

(5)maintaining ongoing clean up of abrasive material; or

(6)stopping active operations during high wind conditions.

J.Spray painting and other coatings:

(1)using enclosures that comply with applicable fire codes; or

(2)using curtains, enclosures or shrouds.

K.High wind contingency measures:

(1)installing and using
on-site anemometers to measure wind speed; the anemometer should trigger a
suitable warning mechanism such as a strobe light or an audible alarm that will
not violate any applicable noise ordinance to notify on-site personnel of high
wind conditions;

(2)using constant wet suppression;

(3)using dust suppressants applied in
amounts, frequency and rates recommended by the manufacturer;

(c)reducing vehicle speeds or using other traffic calming measures (e.g.
sculpted piles); or

(d)restricting access to stockpile areas during non-work hours.

(2)Inactive stockpiles:

(a)maintaining a stable outer crust over stockpile area;

(b)using dust suppressants applied in amounts, frequency and rates
recommended by the manufacturer, and maintained as recommended by manufacturer;

(c)restricting access to stockpile areas; or

(d)utilizing wind breaks (fabric fencing or other materials).

[20.11.20.23 NMAC - Rp, 20.11.20.23 NMAC, 3/17/08]

20.11.20.24NATIVE
GRASS SEEDING AND MULCH SPECIFICATIONS:

A.If the fugitive dust control permit includes provisions to revegetate a
disturbed area, the permittee may use the specifications described in
20.11.20.24 NMAC.When properly applied
and maintained, these specifications have provided reasonably successful results
in the past in Bernalillo county.They
are included here as a reference for permittees and others who choose to use
native revegetation as a long-term reasonably available control measure.However, use of these specifications does not
guarantee success.Failure of any
revegetation method as a long-term reasonably available control measure
requires re-application or other control method approved by the department. The disturbed area shall maintain compliance
with 20.11.20 NMAC.

(1)The native seedspecies
used and rate of application should be as provided in Subsection F of
20.11.20.24 NMAC.

(a)If the area to be seeded is along a
recreational trail of any type, the seed mixes for either type of soil listed
in Subsection F of 20.11.20.24 NMAC should not include four-wing saltbush and
the seeding rate should be reduced by one pound per acre.

(b)Seeds
may be pre-mixed by a seed dealer.Each
pre-mixed bag of seed should be sealed and labeled by the seed dealer in
accordance with federal seed laws and New Mexico department of agriculture
labeling laws.The label should include:
variety, kind of seed, lot number, purity, germination, percent crop, percent
inert, percent weed (including noxious weeds), origin, test data and net
weight. Federal seed laws require that analysis shall be no older than five
months for seed shipped interstate and no older than nine months for seed
shipped intra-state.

(c)48
hours before seeding, the owner or operator should give written notice
to the department by hand delivery or facsimile, requesting inspection of the
sealed seed bags to be used. The department may inspect the sealed seed bags
and labels.

(2)Fertilizer and soil amendments:unless
otherwise specified in the fugitive dust control permit, no fertilizer or other
soil amendments are required on areas to be reseeded.

(3)Mulch:areas to be reseeded
should be mulched as described below unless otherwise specified in the permit.

(a)Hay mulch:perennial native or
introduced grasses of fine-stemmed varieties should be used unless otherwise
specified in the plan.At least 65
percent of the herbage by weight of each bale of hay should be 10 inches in
length or longer.Hay with noxious seed
or plants should not be used. Rotted, brittle, or moldy hay are not considered
acceptable.Marsh grass or prairie hay
composed of native grass of species to be seeded is considered acceptable.Tall wheat grass, intermediate wheat grass,
switch grass, or orchard hay will be acceptable if cut prior to seed formation.Marsh grass hay should be composed of mid and
tall native, usually tough and wiry grass and grass-like plants found in the
lowland areas within the Rocky Mountain region.Hay should be properly cured prior to use.Hay that is brittle, short fibered or
improperly cured is not considered acceptable.Hay mulch should be crosshatched crimped to minimum depth of two inches.

(b)Straw mulch:small grain plants such as
wheat, barley, rye, or oats should not be used.Alfalfa or the stalks of corn, maize or sorghum are not considered acceptable.Material which is brittle, shorter than 10
inches or which breaks or fragments during the crimping operation are not
considered acceptable.Straw mulch
should be crosshatched crimped to minimum depth of two inches.

(c)Gravel mulch:gravel mulch should be a
maximum of three-quarter to one inch in diameter and must have been crushed or
screened with a minimum of one angular face.Experience has demonstrated that gravel mulch provides very successful
results on steep slopes and other areas that may be difficult to stabilize.

(d)Erosion control mats, fabric or
blankets:the type of erosion control mats, fabric or
blankets used should be specified in the fugitive dust control permit.

B.Seed bed preparation:

(1)Prior to starting seed bed preparation, the final grades of all
earthwork should be inspected and certified by a New Mexico licensed engineer,
and a copy of the certification should be delivered to the department:

(a)no soil preparation should be performed
when the surface is wet or muddy or when the soil is so moist that the soil is
not fully loosened by the discing operation;

(b)if erosion, crusting or re-compaction
occurs in an area before seeding, mulching and crimping are successfully
completed, the area should be reworked, beginning with seedbed preparation.

(2)Mechanical
preparation:the seedbed should
be loosened to a minimum depth of six inches by disc or harrow.Areas of heavy or compacted soil may require
additional preparation by chiseling or ripping if discing alone does not result
in preparation to the full minimum depth of six inches.The soil should be worked to a smooth surface
and should be free of clods, stones four inches in diameter and larger, and
debris or foreign material that could interfere with seeding or crimping
operations.

(3)Hand
preparation:areas which cannot
be prepared with mechanized equipment because of small size, irregular shape or
slope may be prepared to a minimum depth of two inches using hand tools or a
rototiller, as specified in the permit.

C.Seeding:

(1)Should not start until the seed bed preparation has been inspected and
certified by a New Mexico licensed engineer, a New Mexico licensed landscape
architect, or other professional approved by the department (e.g. a department
certified erosion control specialist).Notice in writing or by facsimile providing certification pertaining to
the seed bed preparation should be given to the department at least 48 hours
prior to beginning seeding operations so that the department has an opportunity
to inspect the site.No seeding
operations should be conducted when steady wind speeds exceed 10 miles per
hour.

(2)Seed application:

(a)Drill seeding:drill
seeding is highly recommended.Seed
should be applied with a “rangeland” type seed drill equipped with packer
wheels.Seed should be drilled to a
maximum depth of one-half inch.Direction of seeding should be across slopes and on the contour whenever
possible.

(b)Broadcast seeding:seed
may be applied using the broadcast method when size, irregular shape, or slope
exceeding three to one, prevents the use of a seed drill.Seed may be broadcast by hand or by a
mechanical seeder provided that the seed is evenly distributed over the seeding
area.Areas that are broadcast seeded
should be seeded at a rate that is double the rate used for drill seeding.Areas of broadcast seeding should be hand
raked to cover seed.

(c)Seeding with gravel mulch:areas
to be gravel mulched should be seeded at double the standard seed rate with
one-half the seed applied prior to application of gravel and one-half of the
seed applied on the surface of the gravel.Water should be applied in a quantity sufficient to wash seed from the
surface and into the gravel.

(d)Hydro seeding:hydro
seeding with native grass will normally only be successful on areas that will
be irrigated.

D.Hay or straw mulching:

(1)All seeded areas should be mulched unless otherwise specified in the
fugitive dust control permit.On seeded
areas that are level or have slopes that are a ratio of three to one or less,
any of the four types of mulching below may be used.On erosion control areas or slopes steeper
than a ratio of three to one, only gravel mulch or erosion control materials
should be used.

(2)Hay mulch should be applied at a minimum
rate of one and one-half tons per acre of air dry hay.

(3)Straw mulch should be
applied at a minimum rate of two and one-half tons per acre of air dry straw.

(4)Hay or straw mulch should be crosshatched
crimped into the soil to a minimum depth of two inches.

(a)The mulch should be spread uniformly over
the area either by hand or with a mechanical mulch spreader.

(b)When spread by hand, the bales of mulch
should be torn apart and fluffed before spreading.

(c)Mulching should stop when wind speeds
exceed 15 miles per hour.

(d)The mulch should be wetted down and
allowed to soften for approximately 15 to 20 minutes prior to crimping.

(e)A heavy disc should be used to crimp or
anchor the mulch into the soil to a minimum depth of two inches.A mulch-tiller with flat serrated discs at
least one-quarter of an inch in thickness, having dull edges with discs spaced
six inches to eight inches apart or similar equipment should be used.The discs should be of sufficient diameter to
prevent the frame of the equipment from dragging the mulch.

(f)The crimping operations should be across
the slope where practical, but not parallel to prevailing winds.In general, crimping should be in a
north-south direction or in tight interlocking “S” curves to avoid straight
east-west crimp lines.

(g)If small grain straw mulch is used, the
mulch should be crimped in two directions in a cross-hatch pattern.

(5)Gravel mulch:gravel
mulch should be laid evenly by hand or by equipment to a thickness of two
inches.

(6)Erosion control mats, fabric or
blankets:the type of erosion control mats,
fabric or blankets used should be as specified in the fugitive dust control
permit. Anchoring of the erosion control
materials should be consistent with the manufacturer’s recommendations.

(7)Upon completion of the reseeding project,
the permittee should deliver written notice to the department in a timely
manner, certifying completion of seeding project.

E.Protection of native grass seeded
area:the person, owner or operator who has elected to use native seeding as a
control measure shall be responsible for protecting and caring for the seeded
area until plants are fully established.After project completion, the owner or operator shall repair any damage to
seeded areas caused by pedestrian or vehicular traffic or vandalism.During periods of low rainfall, supplemental
watering may be required to successfully establish the native grass seed.Because the owner is responsible for the
fugitive emissions leaving the property, failure of the reseeding project shall
not be a defense to enforcement of 20.11.20 NMAC.The owner or operator may find it necessary
to reseed or use other reasonably available control measures to bring the
property into compliance.The department
strongly recommends that any area being seeded or mulched be adequately fenced
and posted to prevent trespass traffic.

F.Seed specifications and rates should be used as established by the most
recent edition of “city of Albuquerque standard
specifications for public works construction - native grass seeding” section
as updated by the city or as approved in writing by the department.

G.Variations in seeding due to special
environmental conditions:the owner or operator may use a different seeding
mixture in order to address special environmental conditions that make it
unlikely for success of the reseeding effort.Use of an annual rye (Lolium sp.) or cool season grasses (e.g.
barley at 10 pounds per acre) may be added to the seed specification in order
to help stabilize soils, especially for disturbed areas comprising 25 acres or
more when a significant amount of the publicly-owned land or privately-owned
real property is not expected to be built upon within one year.

[20.11.20.24 NMAC - Rp, 20.11.20.24 NMAC, 3/17/08]

20.11.20.25REVIEW MEETING:TIMELY PETITION FOR HEARING BEFORE THE BOARD:If a permit applicant or permittee (requestor) asks the department to meet informally to
review and reconsider the department’s decision regarding the applicant’s
permit application in the manner provided by 20.11.20.25 NMAC, the process
shall not extend the 30-day deadline for filling a timely petition for a
hearing before the board as provided by 20.11.81 NMAC.If a requestor is adversely affected by, or
disagrees with the department’s decision regarding the requestor’s permit
application, the requestor may request an informal review meeting to discuss
the department’s decision.The request
shall be in writing or on a form provided by the department. Within five business days after the requestor
receives the department’s decision regarding the permit application, the
requestor shall deliver the written request to a division manager.Within five business days after a division
manager receives the request, a division manager or designee shall hold an
informal review meeting with the requestor and an additional division
representative (e.g. the person assigned to the permit application review) in
an attempt to resolve disagreements.Within two business days after the informal review meeting, a division
representative shall mail, hand deliver or deliver by facsimile a statement to
the requestor stating whether the department has changed its decision regarding
the permit application, and, if so, specifying the change and the reason for
the change.A person who participated in
a 20.11.20 NMAC permitting action before the department and who is adversely
affected by the decision made by the department, may follow the procedures
described in 20.11.81 NMAC to petition for a hearing before the board.

[20.11.20.25 NMAC - Rp, 20.11.20.25 NMAC, 3/17/08]

20.11.20.26VISUAL
DETERMINATION OF FUGITIVE DUST EMISSIONS:The following method, hereafter called the
“visible fugitive dust detection method”, is used to visually determine the
total amount of time that fugitive dust emissions are visible during a
continuous one-hour observation period.If a trained department observer records visible fugitive dust crossing
a property line of the property being investigated, for a total of 15 minutes
or more during a continuous one-hour period, a violation of 20.11.20 NMAC has
occurred.The observer does not have to
be certified in procedures found in 40 CFR 60, Method 9, Visual
Determination of the Opacity of Emissions from Stationary Sources (EPA Method 9).However, the observer shall receive training
regarding how to identify a violation of 20.11.20 NMAC that is caused by
anthropogenic activities and to distinguish fugitive dust that emanates from a
source that is not required by a board regulation other than 20.11.20 NMAC to
obtain a permit.Training shall consist
of attendance at and completion of the lecture portion of a Method 9
certification course and familiarity with the written materials provided during
the course.The method described in
Subsections A through D of 20.11.20.26 NMAC does not require the opacity of
emissions to be determined during the observation period.

A.To correctly perform this method, the observer shall use two
stopwatches.One stopwatch shall be used
to record the continuous one-hour time period during which the observation is
conducted.This period shall be known as
the “observation period.”The second
stopwatch shall be used to record the total accumulated amount of time that
visible fugitive dust is crossing a property line during the observation
period.The second stopwatch shall
establish the “visible fugitive dust emission time”.

B.Prior
to the observation, the observer shall:

(1)determine the location of potential
fugitive dust source(s) and the location of the downwind property line for the
source;

(2)sketch
the location of the fugitive dust source(s), and, when available during the
observation, record the observer’s location on a copy of the fugitive dust
control permit map or aerial photograph;

(3)sketch or photograph the location of the
downwind property line and physical features that help define the property
line;

(4)sketch or photograph the observer’s
location during the observations;

(5)sketch the position of the sun relative to
the observer;

(6)document that the visible fugitive dust is
not originating from an upwind source other than the source being evaluated;
and

(7)maintain a minimum distance of at least 15
feet from the visible fugitive dust being observed, and a maximum distance of
no more than one-quarter mile away.

D.The observer shall record the time of day when the observation
begins.The observer shall start the
first stopwatch to begin recording the observation period and shall observe
along the property line.With the second
stopwatch, the observer shall record the length of time visible fugitive dust
is crossing the property line.The
observer shall stop the second stopwatch when the visible fugitive dust is no
longer detected crossing the property line.The observer shall continue this procedure during the continuous
one-hour observation period or until the visible fugitive dust emission time
totals 15 minutes or greater during the continuous one-hour observation period,
which is a violation of 20.11.20 NMAC.The observer shall record the time of day when the observation ends.If the observer determines that the visible
fugitive dust being observed is of an intensity that may cause immediate danger
to human health or safety, then, before the observation period is completed,
the observer shall attempt to immediately contact the responsible person,
permittee or owner.

[20.11.20.26 NMAC - Rp, 20.11.20.26 NMAC, 3/17/08]

20.11.20.27ENFORCEMENT:

A.All persons shall use control measures that are effective in
maintaining compliance with 20.11.20 NMAC.Violation of a fugitive dust control permit or fugitive dust control
plan approved by the department is a violation of 20.11.20 NMAC.If a violation occurs or is occurring, the
department may issue a verbal warning, issue a written warning, initiate an
administrative enforcement action and assess an administrative civil penalty,
and take all other actions authorized by law and equity, including issuing a
stop work order as authorized by 20.11.20.27 NMAC.

B.If the department determines a person has violated or is violating a
requirement or prohibition of 20.11.20 NMAC, the department may initiate an
administrative enforcement action and assess an administrative civil penalty
for a past or current violation, or both, as authorized by 74-2-12.A.(1)
NMSA.As also authorized by
74-2-12.A.(2) NMSA and 74-2-12.1 NMSA, the department may commence a civil
action in New Mexico district court for appropriate relief, including a
temporary or permanent injunction.In
addition, as authorized by 74-2-14 NMSA, the department also may commence or
cause a criminal action to be commenced.

C.As authorized by 74-2-12.H NMSA, in connection with an administrative
enforcement action, the director may issue subpoenas for attendance and
testimony of witnesses and the production of relevant papers, books and
documents and may adopt rules for discovery procedures.

D.If a person (requestor) asks the department
for an informal review meeting to consider the department’s decision regarding an administrative compliance order in
the manner provided by 20.11.20.27 NMAC, the process shall not extend the
30-day deadline for submitting a written request to the department director
requesting a public hearing as provided by 74-2-12.C NMSA. If a person receives
an administrative compliance order from the department, that person
(“requestor”) may request an informal review meeting to discuss the
administrative compliance order.The
request shall be in writing or on a form provided by the department.The requestor shall deliver the written
request for an informal review meeting to the director and a division manager
within five business days after the requestor has received the administrative
compliance order.Within five business
days of receiving the request, a division manager or designee shall hold an
informal review meeting with the requestor and a division representative (e.g.
division manager, compliance officer, or person issuing the order) in an
attempt to resolve the administrative compliance order.Within two business days after the informal
review meeting, a division representative shall mail, hand deliver or deliver
by facsimile a statement to the requestor with the department’s final decision
regarding the administrative compliance order and the reasons for the
decision.If the requestor is adversely
affected by the final decision made by the department, the requestor may follow
the procedures described in Subsection E of 20.11.20.27 NMAC.

E.A person who receives an administrative compliance order and chooses
not to sign the compliance order or similar document as requested by the
department, and comply with its terms, may request a hearing consistent with
74-2-12.C NMSA.The decision following
the hearing may be appealed consistent with 74-2-9.A NMSA.

F.Payment of an administrative civil penalty shall not prevent the
department from taking additional enforcement actions, if the violation is
repeated or an additional violation occurs.Payment of an administrative civil penalty for a prior or additional
violation shall not be a defense to a subsequent action taken by the department
to resolve an additional violation.Actions by the department may include suspension or revocation of a
permit, as provided by 74-2-12.B NMSA, and issuance of a stop work order.

G.The permittee or responsible
person as identified in the permit shall take all actions required by the
permit to prevent a violation of 20.11.20 NMAC, including stopping active
operations, if necessary.If the
permittee or responsible person as identified in the permit fails to take all
required actions, the owner or operator, if different, shall take all actions
required to prevent or satisfactorily resolve a violation of 20.11.20 NMAC,
including stopping active operations, if necessary.

H.The department may issue a stop work order, which shall suspend all
active operations except for the required application of reasonably available
control measures.The department also
may revoke a permit issued by the department if the permittee fails to
implement the reasonably available control measures required by the fugitive
dust control permit.

I.If a person fails to obtain a permit as required by 20.11.20 NMAC, the
department may issue a stop work order which shall require all active
operations at a site to stop except for application of reasonably available
control measures.

J.The stop work order, which shall be effective 24 hours after the
person, permittee, owner, operator, or responsible person named in a permit
receives the stop work order, unless an earlier deadline for stopping work or
other activities is imposed by the department for good reason.The stop work order shall remain in effect
until the person, permittee, owner, operator, or responsible person named in
the permit demonstrates to the satisfaction of the department that the
activities of the person, permittee, owner, operator or responsible person
named in the permit comply with the provisions of 20.11.20 NMAC.

[20.11.20.27 NMAC - Rp, 20.11.20.27 NMAC, 3/17/08]

20.11.20.28PUBLIC
OUTREACH AND TRAINING:

A.The
department shall provide or approve public education regarding reducing
fugitive dust.The department shall
maintain an electronic information system using the Internet in order to
provide access to the general public and regulated business community regarding
fugitive dust control programs, activities, regulations, regulatory requirements,
forms and information.

B.The
department shall implement a program to provide training at no cost to
individuals who are or may be required to comply with provisions of 20.11.20
NMAC.Approximately twice per year, the
department shall provide or approve training workshops on fugitive dust and its
control to persons who conduct or participate in projects involving active
operations and to other interested persons.When a person attends the training and successfully passes a test, the
department or approved trainer shall issue a certificate stating that the
person has successfully completed the training.

[20.11.20.28 NMAC - Rp, 20.11.20.28 NMAC, 3/17/08]

20.11.20.29COMPLAINTS:The
department shall respond to complaints from residents, businesses and others in
a timely manner, but in no case shall the initial response take longer than
three business days.

[20.11.20.29 NMAC - Rp, 20.11.20.29 NMAC, 3/17/08]

HISTORY OF
20.11.20 NMAC:

Pre-NMAC History:The
material in this part was derived from that previously filed with the
commission of public records - state records center and archives.

Other History:Regulation
No. 8, Airborne Particulate Matter (filed 2/17/83) was renumbered and
reformatted into first version of the New Mexico Administrative Code as 20 NMAC
11.20, Airborne Particulate Matter, effective 12/01/95.